JUDICIAL COUNCIL OF THE THIRD CIRCUIT _______________ J.C. No. 03-08-90050 _______________ IN RE: COMPLAINT OF JUDICIAL MISCONDUCT ___________________________ ORIGINAL PROCEEDINGS UNDER 28 U.S.C. § 351 TRANSFERRED FROM JUDICIAL COUNCIL OF THE NINTH CIRCUIT (J.C. No. 09-08-90035) ___________________________ MEMORANDUM OPINION ___________________________ (Filed: June 5, 2009) Present: SCIRICA, Chief Judge, SLOVITER, McKEE, RENDELL, BARRY, AMBRO, AMBROSE, BROWN, BARTLE, KANE, and SLEET, Members of the Judicial Council. SCIRICA, Chief Judge. A Complaint of judicial misconduct was identified under 28 U.S.C. § 351(b) against Chief Judge Alex Kozinski1 of the United States Court of Appeals for the Ninth Circuit. The identified Complaint was transferred by the Chief Justice of the United States to the Judicial Council of the Third Circuit from the Judicial Council of the Ninth Circuit. This opinion sets forth the unanimous findings and conclusions of the Judicial Council of the Third Circuit. 1 The Judicial Council of the Third Circuit has determined that the name of the Judge will be disclosed in this Memorandum Opinion. The Judicial Conduct and Disability Act, 28 U.S.C. §§ 351–364, and the Rules for Judicial-Conduct and Judicial-Disability Proceedings govern this proceeding. All Rules cited in this Memorandum Opinion are the Rules for Judicial-Conduct and Judicial- Disability Proceedings. I. A. Jurisdiction and Procedural History On June 11, 2008, the Los Angeles Times published on its website an article entitled “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website.” The article reported, among other things, that the Judge, “who is currently presiding over an obscenity trial in Los Angeles, has maintained a publicly accessible website featuring sexually explicit photos and videos.” In response to the article’s publication, the Judge, who was sitting by designation as a district judge for the purpose of the obscenity trial, suspended the trial to permit exploration of a potential need for his recusal. The next day, the Judge issued a request that the Judicial Council of the Ninth Circuit initiate proceedings under Rule 26 with regard to allegations about him contained in the June 11, 2008, Los Angeles Times article.2 The Judge then declared a mistrial in the obscenity trial 2 The Judge’s June 12, 2008, announcement stated in full: “I have asked the Judicial Council of the Ninth Circuit to take steps pursuant to Rule 26, of the Rules Governing Judicial Conduct and Disability, and to initiate proceedings concerning the article that appeared in yesterday’s Los Angeles Times. I will cooperate fully in any investigation.” 2 and recused himself from the case. B. The Complaint and Transfer by the Chief Justice of the United States The Judicial Council of the Ninth Circuit construed the Judge’s June 12, 2008, announcement as the identification of a complaint of judicial misconduct based on the allegations in the June 11, 2008, article. See 28 U.S.C. § 351(b); Rule 5. The Judicial Council of the Ninth Circuit asked the Chief Justice of the United States to transfer the identified Complaint to the judicial council of another circuit pursuant to Rule 26. On June 16, 2008, the Chief Justice granted the request and selected the Judicial Council of the Third Circuit to exercise jurisdiction over the Complaint. See Rule 26. C. The Special Committee On June 20, 2008, the Honorable Anthony J. Scirica, Chief Judge of the United States Court of Appeals for the Third Circuit and Chair of the Judicial Council of the Third Circuit, entered an order appointing a Special Committee to investigate the Complaint against the Judge. See 28 U.S.C. § 353(a)(1); Rule 11(f). The members of the Special Committee were: Chief Judge Scirica, presiding; Marjorie O. Rendell, Circuit Judge, United States Court of Appeals for the Third Circuit; Walter K. Stapleton, Senior Circuit Judge, United States Court of Appeals for the Third Circuit; Garrett E. Brown, Jr., Chief Judge, United States District Court for the District of New Jersey; and Harvey 3 Bartle III, Chief Judge, United States District Court for the Eastern District of Pennsylvania.3 II. A. The Allegations In its June 16, 2008, order, the Judicial Council of the Ninth Circuit stated that the “identified complaint” of misconduct against the Judge “is based on allegations in [the] June 11, 2008, Los Angeles Times article.”4 The primary focus of the June 11, 2008, article was the Los Angeles Times’s assertion that the Judge “maintained a publicly accessible website featuring sexually explicit photos and videos.” According to the article, the “website” — http://alex.kozinski.com — included “a photo of naked women on all fours painted to look like cows,” “a video of a half-dressed man cavorting with a sexually aroused farm animal,” and “a graphic step-by-step pictorial in which a woman is seen shaving her pubic hair.” Regarding the alleged public accessibility of the “website,” the article reported that the Judge “said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said 3 Chief Judge Scirica notified the Judge of the June 20, 2008, order appointing the Special Committee. See 28 U.S.C. § 358(b)(1); Rule 11(g)(1). 4 The June 16, 2008, order of the Judicial Council of the Ninth Circuit cited as the basis for the identified Complaint the article entitled “9th Circuit’s Chief Judge Posted Sexually Explicit Matter on His Website,” which appeared on latimes.com on June 11, 2008. An expanded and revised version of the article appeared, under a different headline, in the Los Angeles Times print edition on June 12, 2008. 4 he had shared some material on the site with friends.” The article noted that the Judge was presiding over the obscenity trial in United States v. Isaacs and questioned whether the material on the computer system “should force him to step aside” from the trial. The Los Angeles Times apparently was alerted to certain material on the Judge’s computer system by Cyrus Sanai, a Beverly Hills, California, attorney. Mr. Sanai contends that, in December 2007, he discovered certain material on the Judge’s computer system. Mr. Sanai is a critic of the Judge and other Ninth Circuit judges against whom he has previously filed complaints of judicial misconduct in connection with litigation involving his family. Mr. Sanai has appeals pending before the United States Court of Appeals for the Ninth Circuit in Sanai v. Sanai, Nos. 07-36001 and 07-36002. Those appeals were pending in December 2007, when Mr. Sanai says he discovered the material. B. Applicable Standards The Judicial Conduct and Disability Act defines judicial misconduct as “conduct prejudicial to the effective and expeditious administration of the business of the courts.” 28 U.S.C. § 351(a). Under the Rules for Judicial-Conduct and Judicial-Disability Proceedings, judicial misconduct includes “conduct occurring outside the performance of official duties” which “might have a prejudicial effect on the administration of the business of the courts, including a substantial and widespread lowering of public 5 confidence in the courts among reasonable people.” Rule 3(h)(2). These standards are informed, where appropriate, by the precepts of the Code of Conduct for United States Judges, which are “in many potential applications aspirational rather than a set of disciplinary rules.” Commentary on Rule 3. Under the Code of Conduct, “[t]he test for appearance of impropriety is whether the conduct would create in reasonable minds, with knowledge of all the relevant circumstances that a reasonable inquiry would disclose, a perception that the judge’s ability to carry out judicial responsibilities with integrity, impartiality, and competence is impaired.” Code of Conduct for United States Judges, Commentary on Canon 2A. C. Focus of the Special Committee’s Investigation Proceeding from the allegations in the June 11, 2008, Los Angeles Times article, the Special Committee focused its factual investigation on four areas: (1) the creation, use, and maintenance of alex.kozinski.com; (2) the content of alex.kozinski.com; (3) the public accessibility of the material available at alex.kozinski.com; and (4) the circumstances of the Judge’s assignment to the Isaacs obscenity trial. With respect to the Judge’s online computer files, the Special Committee gathered and reviewed information relevant to the following specific questions: (1) Who created, used, and maintained alex.kozinski.com? (2) When was alex.kozinski.com created, and for what purpose? (3) How was it used and maintained? (4) What material was available 6 on alex.kozinski.com? (5) Who placed it there? (6) How and when did that person (or those people) place it there? (7) What security measures, if any, were taken to prevent public access to alex.kozinski.com? (8) Who took such measures? (9) When were such measures taken? (10) Was the material on alex.kozinski.com shared? (11) If so, how and with whom was it shared? (12) Was it shared with the Judge’s knowledge or permission? (13) What was the degree and manner of public accessibility to alex.kozinski.com? (14) What were the Judge’s beliefs regarding public accessibility? and (15) What did the Judge know about attempts to access alex.kozinski.com? D. Investigative Procedure The Special Committee, assisted by its counsel, Robert C. Heim of Dechert LLP and J. Gordon Cooney, Jr., of Morgan, Lewis & Bockius LLP, investigated these issues by making written and telephonic inquiries; reviewing relevant documents and the image, audio, and video files provided by the Judge; engaging a consultant to advise the Special Committee on certain computer technology issues; and examining the Judge in person, under oath, and on the record.